DCIT 9(1), MUMBAI V. AHUJA PLATINUM PROPERTIES PVT LTD., MUMBAI

ITA 2137/MUM/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6669 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-07-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 17-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R G TRALSHWALA
• Assessee Lawyers: P C MAURYA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI N.V. VASUDEVAN, J.M. AND SHRI R.K. PAND A, A.M. ITA NO.2137/MUM/2010 ASSESSMENT YEAR : 2003-04 THE D.C.I.T RG.9(1), R. NO.223, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020 VS. M/S. AHUJA PLATINUM PROPERTIES LTD. A-1, RAJPIPLA LINKING ROAD, SANTACRUZ (W), MUMBAI-400 054 PAN NO: AAECA4138L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P. C. MAURYA DEPARTMENT BY : SHRI R. G. TRALSHWALA O R D E R PER R.K. PANDA, A.M. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 16.12.2009 PASSED BY THE CIT(A)-19, MUMBAI RELATING TO A.Y. 2003-04. 2. THE REVENUE IN ITS ONLY EFFECTIVE GROUND OF APP EAL HAS CHALLENGED THE ORDER OF THE LD. CIT(A) IN DELETING THE PENALTY OF RS.19,11,854/- LEVIED BY THE AO U/S. 271(1)(C) OF THE ACT. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS AS A BUILDER AND DE VELOPER. IN THE ASSESSMENT FRAMED U/S.143(3), THE AO HAS DETERMINED THE INCOME AT RS.15,000/- AS AGAINST RETURN LOSS OF RS.2,94,35,37 9/- BY MAKING VARIOUS DISALLOWANCES, INCLUDING DISALLOWANCE OF INTEREST O F RS.74,96,744/-. ITA NO: 2137/MUM/2010 M/S. AHUJA PLATINUM PROPERTIES LTD. 2 4. IN APPEAL, THE LD. CIT(A) GAVE SUBSTANTIAL RELIE F TO THE ASSESSEE, WHEREBY THE DISALLOWANCES OF INTEREST MADE BY THE A O AT RS.74,96,744/- WAS REDUCED TO RS.52,02,322/-. THE ASSESSEE PREFERR ED AN APPEAL BEFORE THE TRIBUNAL AGAINST THE SUSTENANCE OF INTEREST TO THE EXTENT OF RS.52,02,322/-. IN THE MEAN TIME, THE AO LEVIED PENALTY U/S. 271(1) (C) OF THE I.T. ACT AMOUNTING TO RS.19,11,854/- IN RESPECT OF THE AMOUN T OF INTEREST SUSTAINED BY THE LD. CIT(A). WHEN THE ASSESSEE CHALLENGED THE LEVY OF PENALTY OF RS.19,11,854/- U/S. 271(1)(C) OF THE ACT, THE LD. C IT(A) DELETED THE PENALTY LEVIED BY THE AO, ON THE GROUND THAT THE ASSESSEE H AS MADE AN EXPLANATION WHICH IS NOT FOUND TO BE FALSE OR THAT IT LACKS BON AFIDE AND THE FACTS RELATING TO THE CLAIM MADE HAVE BEEN DISCLOSED IN THE RETURN OF INCOME FILED. 5. AGGREIVED WITH SUCH ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 6. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET F ILED A COPY OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO: 4723/MUM/2007 AND 4558/MUM/2007, ORDER DATED 24.06.2011 FOR THE A.Y. 2003-04. REFERRING TO THE SAID ORDER, HE SUBMITTED THAT THE TRIBUNAL HAD DELETED THE DISALLOWANCE OF RS.52,02,322/- SUSTAINED BY THE LD. CIT(A). IN T HE SAID ORDER, THE TRIBUNAL HAS ALSO DISMISSED THE APPEAL FILED BY THE REVENUE, WHEREIN THE REVENUE HAS CHALLENGED THE PARTIAL RELIEF GIVEN BY THE LD. CIT(A) ON ACCOUNT OF DISALLOWANCE OF INTEREST. HE ACCORDINGLY, SUBMI TTED THAT SINCE THE QUANTUM ADDITION HAD BEEN DELETED BY THE TRIBUNAL, THEREFORE, THE PENALTY DOESNT SURVIVE. THEREFORE, THE APPEAL FILED BY THE REVENUE HAS TO BE DISMISSED. ITA NO: 2137/MUM/2010 M/S. AHUJA PLATINUM PROPERTIES LTD. 3 7. THE LD. DR ON THE OTHER HAND, WHILE SUPPORTING T HE ORDER OF THE LD. CIT(A) FAIRLY CONCEDED THAT THE QUANTUM ADDITION HA S BEEN DELETED BY THE TRIBUNAL AND, THEREFORE, THE ORDER OF THE LD. CIT(A ) DELETING/CANCELLING THE PENALTY HAS TO BE UPHELD. 8. AFTER HEARING BOTH THE SIDES, WE FIND THE PENALT Y OF RS.19,11,854/- WAS LEVIED BY THE AO ON ACCOUNT OF SUSTENANCE OF IN TEREST OF RS.52,02,322/- BY THE LD. CIT(A) OUT OF TOTAL DISALLOWANCE OF RS.7 4,96,744/- MADE BY THE AO. WE FIND THE TRIBUNAL VIDE ORDER DATED 24.06.201 1 HAS ALLOWED THE APPEAL OF THE ASSESSEE AND DISMISSED THE APPEAL FIL ED BY THE REVENUE ON ACCOUNT OF DISALLOWANCE OF INTEREST. THUS THE ENTIR E INTEREST CLAIMED BY THE ASSESSEE HAS BEEN ALLOWED BY THE TRIBUNAL. SINCE TH E QUANTUM ADDITION HAS BEEN DELETED BY THE TRIBUNAL, THEREFORE, THE PENALT Y DOESNT SURVIVE. WE THEREFORE, UPHOLD THE ORDER OF THE LD. CIT(A), DELE TING THE PENALTY LEVIED BY THE AO. THE GROUND RAISED BY THE REVENUE IS ACCORDI NGLY DISMISSED. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED ON THIS 22 ND DAY OF JULY, 2011. SD/- ( N. V. VASUDEVAN ) JUDICIAL MEMBER SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED : 22/07/2011 ITA NO: 2137/MUM/2010 M/S. AHUJA PLATINUM PROPERTIES LTD. 4 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, A - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI